Balancing National Security Concerns with the Right to Seek Asylum

by Christy Carnegie Fujio, JD, MA, and Sari Long on August 12, 2011

A June 16 decision
filed by the US Court of Appeals for the Third Circuit (comprised of
DE, NJ, and PA) offered a ray of hope to asylum seekers facing the daunting and
ambiguous “national security bar.” The decision prevented the deportation of
two Uzbek men and likely saved their lives. On a larger scale, the decision is
a step forward for all those seeking asylum from torture who would otherwise be
barred because of tenuous national security concerns.

The “national security bar” was established so the
government could deport a noncitizen on the basis of a belief that he or she
may be “a danger to the security of the United States,” even if there is a high
likelihood of that individual being tortured upon deportation to their home
country. The Third Circuit, in unambiguous language, said “If we were to allow
the [Board of Immigration Appeals] decisions to stand, it would run counter to
this country’s strong tradition of granting protection to individuals sought by
authoritarian regimes based on politically motivated charges.”

In the past, the national security bar prevented many
legitimate asylum seekers from finding safe haven in the US. Up until 2008,
even Nobel Peace Prize Winner Nelson Mandela was barred entry to the US because
the African National Council, of which he was the leader, was considered by the
US to be a “terrorist organization.”
Overly-broad definitions of what constitutes threats to national security and
terrorism have barred desperate and vulnerable noncitizens from seeking asylum
in the US.

For example, under the “material support to terrorism” bar, the US can deny asylum and other immigration protections to those who have
assisted terrorist organizations. Health professionals who provided medical
care to members of terrorist organizations or armed groups are prevented from
gaining asylum in the US, despite being threatened with torture or death in
their home countries. Individuals forced to perform domestic duties for
designated terrorist groups are also barred from seeking asylum despite the
threat of being harmed upon return home. These are exactly the kind of populations
US asylum law was designed to protect.

This decision in the Third Circuit may seem like a small
victory for asylum rights advocates, and it is. Circuit court decisions are
binding law only within the Circuit, and the value of this decision as
“persuasive law” for other parts of the country remains unclear. But for two people who would undoubtedly suffer
physical harm and fear upon return to Uzbekistan, the decision was overwhelmingly
a relief.

There is still a long way to go to ensuring that those who
most need protection from torture and violence in their home countries can find
it here in the US, however. Redefining what must be shown by the government to
prove an asylum seeker is a threat to national security is a step in the right
direction.